Com. v. Butler, J.

J-A27044-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JERRY LAMAR BUTLER :

:

Appellant : No. 3002 EDA 2024

Appeal from the Judgment of Sentence Entered September 19, 2024

In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0001074-2024

BEFORE: BOWES, J., MURRAY, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED FEBRUARY 3, 2026

Jerry Lamar Butler (“Butler”) appeals from the judgment of sentence

entered by the Montgomery County Court of Common Pleas (“trial court”)

following his convictions of second-degree murder, robbery, and conspiracy. 1

Butler challenges the trial court’s ruling regarding an expert witness, the

denial of his motion to suppress a search warrant, and the constitutionality of

a sentence of mandatory life imprisonment without parole (“LWOP”) for

individuals convicted of second-degree murder. We affirm.

Facts and Procedural History

The Commonwealth jointly tried Butler, Daquan Allen (“Allen”), and

Damon Brantley (“Brantley”) for their roles in the murder of William Carter

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1 18 Pa.C.S. §§ 2502(b); 3701; and 903.

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(“the victim”). A fourth defendant, Justin Davis (“Davis”), was sixteen at the

time of the shooting and testified against his three co-conspirators. The trial

court summarized the basic facts as follows:

The conspiracy was set in motion by Katherine Emel (“Emel”).

Emel had seen the victim with a wad of money earlier that day,

and told Allen that the victim owed her money. Butler, Brantley,

Allen, and Justin Davis drove to the victim’s location, supplied by

Emel, in a stolen Toyota Rav4. They parked behind the victim’s

Buick LaSabre and when the victim went to his car, they got out

of their car, robbed and shot the victim once in the head. They

fled the scene, abandoned the Rav4 near the crime scene, and

switched to a different car, an[] Infinity, to avoid detection. Later,

Brantley went back to set fire to the Rav4. Butler, Brantley, and

Allen fled to a residence in Endicott, New York, where they were

apprehended on January 31, 2024.

Trial Court Opinion, 1/21/2025, at 1-2.

The jury convicted Butler of all three charges and the trial court imposed

the mandatory sentence of LWOP. Butler filed a timely post-sentence motion,

and a timely notice of appeal following its denial. Both Butler and the trial

court have complied with Pa.R.A.P. 1925. He raises three claims for our

review:

1. Whether the trial court erred in denying [Butler]’s request for

a … hearing on the admissibility of DNA evidence generated

using STRmix probabilistic genotyping software, where the

defense expert raised substantial questions about the reliability

and general acceptance of STRmix as applied to low-template,

multi-contributor mixtures such as those presented in this

case?

2. Whether the trial court erred in denying [Butler]’s motion to

suppress historical cell site location information (CSLI)?

3. Whether the mandatory sentence of life without parole imposed

for second-degree (felony) murder under 18 Pa.C.S. § 1102(b)

and 61 Pa.C.S. § 6137(a)(1) violates Article I, Section 13 of

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the Pennsylvania Constitution and the Eighth Amendment to

the United States Constitution?

Butler’s Brief at 4.

Frye Hearing

Butler’s first claim addresses the trial court’s denial of his request to

hold a Frye2 hearing on the admissibility of the expert testimony linking his

DNA to the victim.

We review evidentiary decisions, including whether the trial court erred

in not granting a Frye hearing, for an abuse of discretion. Commonwealth

v. Jacoby, 170 A.3d 1065, 1090 (Pa. 2017). “An abuse of discretion is not

merely an error of judgment, but if in reaching a conclusion the law is

overridden or misapplied, or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by

the evidence or the record, discretion is abused.” Id. (quoting

Commonwealth v. Walker, 92 A.3d 766, 772 (Pa. 2014)).

Our Rules of Evidence permit the admission of expert testimony if “the

expert’s methodology is generally accepted in the relevant field.” Pa.R.E.

702(c). This “general acceptance” rule is based on the standard set forth by

Frye.

The Frye test is a two-step process. First, the party opposing the

evidence must show that the scientific evidence is “novel.” “This Court has

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2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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explained that scientific evidence is ‘novel’ when ‘there is a legitimate dispute

regarding the reliability of the expert’s conclusions.’” Commonwealth v.

Cramer, 195 A.3d 594, 606 (Pa. Super. 2018) (quoting Commonwealth v.

Safka, 95 A.3d 304, 307 (Pa. Super. 2014)). If the moving party has

identified novel scientific evidence, then the proponent of the scientific

evidence must show that “the expert’s methodology has general acceptance

in the relevant scientific community” despite the legitimate dispute.

Commonwealth v. Foley, 38 A.3d 882, 888 (Pa. Super. 2012) (citations

omitted). For Frye to apply, the dispute as to “the reliability of an expert’s

conclusions” pertains to the methodology used to reach that conclusion, not

to the conclusion itself. Grady v. Frito-Lay, 839 A.2d 1038, 1047 (Pa. 2003).

At trial, the Commonwealth called Thomas Rataic, a forensic DNA

scientist employed by the Pennsylvania State Forensic DNA Lab. N.T.,

9/12/2024, at 300. Rataic discussed “STR or short tandem repeat analysis,”

which “allows us to isolate specific regions of the DNA molecule where short

sequences [are] known to rerepeat.” Id. at 304. These repeating regions

“vary in length from one person to another” and thus can differentiate

individuals. Id.

Rataic tested several items to determine if DNA from the defendants

was present. He explained that some of the items were discarded as unusable

“due to complexity of mixtures.” Id. at 310. According to Rataic, if the

“mixture profile is over four people ... it’s automatically uninterpretable” per

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lab policy. Id. at 311. He stated that prior to 2020, his lab would “only

interpret it … if there was a single major [contributor]” to the profile. Id. He

explained that in 2020, however, his lab “brought online a probabilistic

genotyping system called STRmix which allows us to use more information

that is in the profile than we could on our own.” Id. at 312. With that system,

the lab “can interpret a four-person mixture basically no matter what.” Id.

Turning to the items linking Butler to the victim, Rataic obtained “a DNA

profile consistent with a mixture of four contributors” from an item designated

as item Q9, described as the victim’s “pants front right pocket interior[.]” Id.

at 314. Rataic testified that Butler “can be included as a potential contributor

to this mixture profile.” Id. He calculated that the profile was “520,000 times

more likely” to have originated from a mixture of the victim, Butler, and two

unknown, unrelated individuals than if it had originated from a mixture of the

victim and three unknown, unrelated individuals. Id. at 314-15.3

Next, Rataic testified that “a DNA profile consistent with the mixture of

four contributors was obtained from the pants front left pocket interior” of the

victim, designated as item Q11. Id. at 318. Again, Butler was included as a

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3 We note that the notes of testimony use the word “related” not “unrelated”

pertaining to Rataic’s testimony solely as to Q9. See generally N.T.,

9/12/2024, at 314-19. As it is incongruous that Rataic would have used such

a vastly different comparison group for only one of the three DNA samples

tested, we logically conclude that this was either a typo or an unintentional

misstatement, and Rataic instead intended to testify that the comparison

group for Q9 was also as to “unrelated individuals.” Id.

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potential contributor. For this item, the “profile obtained from this item is 71

quadrillion times more likely if it originated from … the victim … Butler … and

two unknown unrelated individuals than if it had originated from … the victim

… and three other unknown unrelated individuals in the population.” Id.

Finally, he testified that “a DNA profile consistent with a mixture of four

contributors was obtained from the sweatshirt front pouch pocket interior,”

designated as item Q12. Id. at 319. Butler was again “included as a potential

contributor” to the mixture. Id. The “profile obtained from this item is 140

million times more likely” than a profile originating from the victim and three

other unknown and unrelated individuals. Id.

During pretrial discovery the Commonwealth declared its intent to offer

expert testimony in line with the foregoing summary. Butler filed a motion

seeking a Frye hearing. Butler’s motion stated that “the reliability of

probabilistic genotype software like STRmix may be validated for simpler DNA

mixtures involving less than three … contributors,” but argued that the

“reliability … for analyzing more complex mixtures”—defined as those

involving “four contributors” or where “the minor contributor contributes less

than 20% of the DNA”—has not been established. Motion in Limine, 9/6/2024,

¶ 22. Butler cited in support a 2016 report by the President’s Council of

Advisors on Science and Technology (“PCAST”). Id.

Additionally, Butler retained expert witness Katherine Cross, who

reviewed the discovery and “opined that the conclusions … cannot be deemed

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reliable based, in part, on the lack of available studies to establish the

reliability of STRmix method” for situations where “there are three … or more

contributors … and where the minor contributor of interest has a contribution

of less than 20%.” Id. ¶ 25. The motion attached Cross’ report and quoted

her conclusion:

The assigned percentage of contribution for … Butler in these

samples is low. The statistical reports generated in the laboratory

samples is low. The statistical reports generated in the laboratory

notes allocate percent contributions for each individual in the

mixture. For Q9, Mr. Butler is assessed at 6% contribution. For

Q11, Mr. Butler is assessed at 8% contribution. For Q12, Mr.

Butler is assessed at 4%. These percentages are unreliable in

three[-]person (and higher) mixtures. The samples Q9, Q11, and

Q12 do not meet the 20% of the sample or the minimum level of

template required for the method. The total template of all

contributors exceeds the minimum as does the amount for … [the

victim]’s contribution, but the minor contributors do not.

Laboratories have policies regarding interpretation of three (or

more) person mixtures. Many laboratories will not interpret three

or more person mixtures, with the exception of a clear major

contributor. The clear major contributor can be resolved, but any

minor contributors are listed as inconclusive or even excluded,

depending on the alleles detected.

Id. ¶ 26.

The trial court held a hearing on the motion, at which the parties “agreed

that the defense can proceed on Ms. Cross’ letter of opinion dated September

6, 2024, and an e-mail she sent, which is sort of like a supplement to that

opinion, on September 9, 2024.” N.T., 9/10/2024, at 12. Butler stated that

his argument “is very limited. We’re not saying that STRmix is not reliable in

all circumstances.” Id. at 13. Instead, Butler argued that “STRmix has not

been proven to be reliable … when you have multiple confounding factors that

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complicate the DNA sample. And those, in this case, are the number of

contributors.” Id. at 13-14. Butler also cited the fact that his DNA was

present at low levels, as his percentage contribution on two of the items was

eight and six percent, respectively, and “even less” on the remaining item.

Id. at 14. Additionally, Butler argued “there’s significant overlap in the alleles

of the victim in this case, who is presumed to be the primary contributor to

the DNA samples that were recovered from his clothing, because that’s what

we’re talking about here.” Id.; Motion in Limine, 9/6/2024, Exhibit D at 1

(Cross’ report). As asserted by Butler, these “multiple confounding factors”

established the novelty of STRmix. N.T., 9/10/2024, at 18.

The Commonwealth presented its counterargument, which the court

accurately summarized in its written opinion supporting its denial of a Frye

hearing:

The Commonwealth explained that the STRmix software had

been used since 2012, and a total of 114 labs use this software

throughout the world, including 91 labs in North America,

including the FBI, the Department of Alcohol, Tobacco, Firearms,

and Explosives. The Commonwealth suggested that the issues

that defense counsel has raised go to the weight of that evidence.

The Commonwealth addressed that 2016 study, relied on by

the defense expert to opine that the use of STRmix technology

with multiple contributors was unreliable. The Commonwealth

noted that the 2016 study was limited and that it did not conclude

the use of STRmix for a complex DNA sample was unreliable;

rather, it concluded that future testing was warranted.

Additionally, the Commonwealth noted an article published in

2017 as a response to the 2016 study entitled, Internal Validation

of STRmix- a Multi Laboratory Response to PCAST. This 2017

article set out the limitations of the 2016 study, and the 2017

article reported on a more robust study of the STRmix technology

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in complex DNA samples, and concluded that “the material

provided demonstrate a foundational validity of STRmix for

complex mixed DNA profile to levels well beyond the complexity

and contribution levels suggested by PCAST.” The Commonwealth

further [c]ited to another study published by the FBI in its peer

review literature entitled, Internal Validation of STRmix of the

Interpretation of Single Source and Mixed DNA Profiles. The

Commonwealth highlighted the conclusion of the FBI study, that

the findings support that STRmix is sufficiently robust for

implementation in forensic laboratories based upon complex

testing of over 300 samples, including ranges from one to five

contributors.

Trial Court Opinion, 1/27/2025, at 13-14 (citations omitted).

Following its review, the trial court concluded “that the defense had not

satisfied the threshold Frye requirement that the methodology being

challenged was novel.” Id. at 14.

We conclude that the trial court did not abuse its discretion. Butler

argues that if “he did not establish a legitimate dispute regarding the reliability

of the Commonwealth’s DNA expert’s conclusions, it is difficult to conceive of

any scenario in which a Frye hearing would ever be warranted.” Butler’s Brief

at 24. This argument is tied to his expert testimony. He argues that he

did precisely what the law requires to establish entitlement to a

Frye hearing: [Butler] presented an opinion from a qualified

expert, Katherine Cross, who explained[] why the application of

STRmix to these complex, low-level mixtures with multiple

contributors lacked validation as a reliable method of analyzing

such DNA samples.

Id. at 24-25. He discusses the 2016 PCAST report, Cross’ expert opinion, and

her supplemental email, and maintains that her “opinions explicitly disputed

the reliability of Mr. Rataic’s conclusions. Accordingly, ... Butler plainly

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satisfied his preliminary burden of establishing a ‘legitimate dispute regarding

the reliability of the expert’s conclusions.” Id. at 28-29 (quoting

Commonwealth v. Bonnett, 239 A.3d 1096, 1102 (Pa. Super. 2020)).

We conclude that Butler failed to make the required showing that the

trial court abused its discretion. Butler appeared to agree that STRmix

generally produces reliable results. See N.T., 9/10/2024, at 13 (Butler noting

that the argument “is very limited” and is not “that STRmix is not reliable in

all circumstances.”). His claim was that the test results were unreliable in this

particular case because of the combination of multiple variables—namely, the

presence of four contributors, the low contribution percentage by Butler, and

shared alleles between the victim and Butler.

Butler’s argument is that the trial court, and this Court on appeal, must

credit his expert’s opinion to establish that there is a legitimate dispute

regarding the reliability of Ratiac’s conclusions. However, beyond citing one

study, Cross did not establish that scientists in the field view STRmix as

unreliable under these circumstances. Butler effectively presented a battle of

the experts, and the trial court concluded that the arguments “presented a

question of weight and not admissibility.” Trial Court Opinion, 1/31/2025, at

14.

Cross’ expert report cited a study suggesting that STRmix produced

unreliable results when more than three contributors are present in a sample

and where the relevant DNA contribution level is low. Conversely, the

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Commonwealth argued, and the trial court accepted, that the sole study

referenced by Cross had been addressed and debunked a year later.

Furthermore, an FBI study concluded “that STRmix is sufficiently robust …

based upon complex testing of over 300 samples, including ranges from one

to five contributors.” Id. at 13-14.

We further find compelling our Supreme Court’s decision in Jacoby, a

case involving a different type of DNA testing. The Commonwealth’s expert

there used Y-STR DNA, which involves STR sequencing focused on the Y

chromosome. See generally Jacoby, 170 A.3d at 1091. The Commonwealth

obtained scrapings from underneath the murder victim’s fingernails and

submitted those items for Y-STR DNA testing. “A sample from [the victim]’s

left hand produced a full Y–STR profile from a single contributor. Further

testing revealed that Jacoby and all of his male relatives could not be excluded

as the source of the sample.” Id. at 1073.

Jacoby requested a Frye hearing, arguing that Y-STR is weaker than

other types of testing “because instead of making a match, the result can

merely indicate that Jacoby and all his male relatives cannot be ruled out.”

Id. (citation and quotation marks omitted). The Court concluded that Jacoby

failed to establish an abuse of discretion:

Questions that raise scientifically complex questions are no

easy task for courts. Nonetheless, when considering those

questions, we remain bound by our standard of review. Thus,

Jacoby is entitled to relief only if he can demonstrate to this Court

that the trial court’s decision was an abuse of discretion; that is,

inter alia, the court’s determination was manifestly unreasonable.

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Under the limited circumstances of this case, we conclude that

Jacoby did not make such a showing.

Jacoby could not overcome the trial court’s conclusion that

his argument was predicated upon the weight that should be

assigned to the Y–STR DNA evidence, and not upon the novelty of

the database process itself. Repeatedly, Jacoby was forced by the

trial court’s questioning to concede that the Y–STR databases

were not created in a novel fashion that would differentiate the

scientific methods of creating these databases from others.

Indeed, Jacoby’s attorney conceded that the technique for

creating the database was the same as in other DNA databases.

Jacoby’s arguments were premised substantially upon the fact

that Y–STR databases have not yet grown large enough to secure

a more reliable result, that they do not account for geographical

differences, and that, because of their size and limitations, the

results are not sufficiently discriminatory to constitute reliable

evidence. These arguments are directed at the weight that should

be assigned to that evidence at trial, and not at the novelty of the

creation of the databases. They are arguments for a jury.

Id. at 1094–95 (footnotes and citations omitted).

In this posture, where Butler bore the burden of showing “novelty”

under Frye, the trial court could not simply credit Cross’ view to establish a

legitimate dispute. In Commonwealth v. Topa, wherein our Supreme Court

adopted Frye, the Commonwealth wished to present an expert to testify that

Topa made a phone call based on “voiceprint evidence.” Commonwealth v.

Topa, 369 A.2d 1277, 1279 (Pa. 1977). The Court stressed it did “not

question the sincerity of [the expert’s] testimony” and “respect[ed] his

considerable expertise.” Id. at 1281. It concluded, however, that “his

opinion, alone, will not suffice to permit the introduction of such scientific

evidence into a court of law. Admissibility of the evidence depends upon the

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[g]eneral acceptance of its validity by those scientists active in the field to

which the evidence belongs.” Id.

Similarly, we do not and cannot question Cross’ opinion or her

considerable expertise. At the same time, neither the trial court nor this Court

can simply credit one expert’s view over another as to the reliability of STRmix

in this case. “One of the primary reasons we embraced the Frye test in Topa

was its assurance that judges would be guided by scientists when assessing

the reliability of a scientific method.” Frito-Lay, 839 A.2d at 1044-45. Thus,

when faced with competing expert opinions, neither the trial court nor this

Court may simply select one of the two opinions. “[I]t is no part of the trial

court’s function to assess whether it considers those theories, techniques[,]

and/or conclusions to be accurate or reliable based upon the available facts

and data.” Walsh Est. of Walsh v. BASF Corp., 234 A.3d 446, 458 (Pa.

2020).

The correctness of the trial court’s decision is further evidenced by the

email treated as a supplement to Cross’ report and entered at the hearing.

Therein, Cross addressed the 2017 article noted by the Commonwealth,

stating:

I am very familiar with this article. It addresses multiple

contributors, low contribution, and overlap, but not in

combination. It also addresses false inclusions due to common

alleles. Anything under 500,000 can be due to chance based on

this article and the FBl Internal validations. I don’t know of any

published or validation studies that specifically look at stochastic

effects due to low contribution + significant overlap with an

assumed contributor (who is also the major contributor) + three

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or more contributors in the same sample. I think this case

presents a unique scenario that is not generally addressed

in validation studies. It is basically a “worst case scenario” of

issues that can arise in mixture interpretation.

Exhibit C, 9/1/2024 (emphasis added).

In other words, Cross stated her opinion that STRmix produces an

unreliable result in this specific circumstance. The Frye rule, however,

“applies to an expert’s methods, not his conclusions[.]” Frito-Lay, 839 A.2d

at 1047; see also Jacoby, 170 A.3d at 1095 n.14 (“[T]he dissent points out

that Jacoby highlighted differences between Y–STR DNA testing and

autosomal DNA testing. Once more, all of these arguments are arguments

that can be made to a jury to demonstrate why Y–STR DNA results should not

carry the same weight as other types of DNA testing.”). Indeed, Cross

presented a substantially similar conclusion when she served as the expert for

Jacoby, which our Supreme Court found was properly presented to the jury,

but not the basis for a Frye hearing. See Jacoby, 170 A.3d at 1095 n.15.

Butler was required to establish that the use of STRmix in this case was

“novel.” We find no error in the trial court’s ruling that he failed to carry his

burden of proof. No relief is due.

Motion to Suppress

Butler’s second argument alleges that the trial court erred by failing to

suppress historical cell site location information (“CSLI”) data. Butler argues

that the Commonwealth’s affidavit of probable cause failed for two reasons.

First, it was “overbroad in its temporal scope[.]” Butler’s Brief at 33. Second,

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it “failed to set forth sufficient facts to establish probable cause that the CSLI

would yield evidence of a crime or contraband.” Id.

The record reflects that Montgomery County Detective Bureau Detective

Mark Minzola attached a twenty-nine-page affidavit of probable cause

requesting a warrant to obtain from AT&T records concerning the phone

number 267-854-5767, which, as discussed below, was a number attributed

to Butler. The affidavit detailed the results of a joint investigation conducted

by the Montgomery County Detective Bureau and the Norristown Police

Department. It related that officers responded to Powell and Wood Streets in

Norristown, Pennsylvania on January 20, 2024, at 7:53 p.m. and found

Carter’s body. Affidavit of Probable Cause, 1/28/2024, at 4. Investigators

obtained surveillance video and saw a Toyota RAV-4 park several feet behind

Carter’s parked and unoccupied vehicle. Id. at 6. Less than a minute later,

Carter is depicted exiting a Powell Street residence. The video shows three

males exit the RAV-4, with the driver remaining inside. The three males jointly

rob Carter and one of the males shoots and kills Carter. Id. at 7. The three

males reentered the RAV-4 and fled the scene.

The affidavit next details the discovery of the burning RAV-4 after a 911

call at approximately 3:04 a.m. on January 21, 2024. Id. at 8. Investigators

recovered the VIN and learned it had been reported stolen on December 21,

2023. Id. Using license plate readers, detectives learned the vehicle had

visited King of Prussia Mall on January 16, 2024, and surveillance video from

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the mall showed the vehicle dropping off a female. Id. This female was

identified and interviewed; she disclosed that her roommate, Leilah Chang,

drove the RAV-4 that day. Id. at 10. Investigators visited the apartment and

spoke with Chang. Authorities learned that Chang was dating codefendant

Brantley and, following additional investigation, linked Brantley to Carter’s

murder. Id. at 13-14.

In tandem with the foregoing events, the affidavit also sets out that a

confidential source informed Lieutenant Detective Todd Richard that Brantley

and Butler both participated in the robbery and murder. Id. at 15. The source

related that he or she learned the information from Butler’s sister, Gieara

Johnson-Butler. Id. The source stated that Johnson-Butler identified Butler

from still photographs released to the media by the police, and the source

provided screenshots showing relevant text messages between the source and

Johnson-Butler. Id.

Detectives then obtained a search warrant for Johnson-Butler’s phone.

The phone’s call log showed a conference phone call lasting sixteen minutes

and twenty seconds between Johnson-Butler, Brantley, Butler, and two

others. Id. at 17. Her saved contacts included Butler, whose number was

listed as 267-854-5767. Id.

Detective Minzola then set forth that based upon his “training,

knowledge, and experience,” criminals frequently “utilize their cellular

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telephones if [sic] furtherance of their illicit activity.” Id. at 21. He

elaborated:

Criminals have used their cellular telephones before, during

and after committing crimes. They employ their cellular telephone

communications to plan, execute and flee their crimes. It is

equally important for criminals to stay in touch with their co-

conspirators for the purposes of successfully committing their

crime(s), eluding detection and/or capture from the police.

In addition, knowing how cellular telephones operate and

the respective records which are generated from such usage, offer

an unique opportunity for law enforcement to utilize these records

to either prove or disprove an individual’s general location on a

specific date and time.

Based upon Detective Minzola’s training, knowledge and

experience, he has learned that PROVIDERS are companies that

provide[] cellular communications service to the general public.

In order to provide this service, many cellular service PROVIDERS

maintain antenna towers (“cell towers”) that serve and provide

cellular service to devices that are within range of the tower’s

signals. Each cell tower receives signals from wireless devices,

such as cellular phones, in its general vicinity. By communicating

with a cell tower, a wireless device can transmit and receive

communications, such as phone calls, text messages, and other

data.

Id. at 21-22. Detective Minzola’s affidavit requested historical CSLI for

January 8, 2024, to January 26, 2024.4

On May 23, 2024, Butler filed an omnibus motion to suppress. Of

relevance here, Butler alleged that the warrant “was overbroad and further

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4 The affidavit sought the following categories of data: “subscriber/ billing

information, call detail records, [and] call detail records with cell site

information and time advance records.” Affidavit of Probable Cause,

1/28/2024, at 22. The parties use the generic label “CSLI” for all data

obtained, and we therefore do the same.

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failed to identify with particularity the information sought to be search[ed] for

and seized,” and that law enforcement “did not have the requisite probable

cause to believe that the acquisition of defendant’s historical CSLI would lead

to evidence of a crime or contraband[.]” Motion to Suppress, 5/23/2024, ¶

18(c).

The trial court addressed this and several other motions at a hearing on

June 18, 2024. Codefendant Allen argued that the separate (and similar)

warrant for Allen’s CSLI data was invalid because “the presence of a phone in

connection with someone who’s suspected of a crime is not enough.” N.T.,

6/28/2024, at 60. “There has to be some sort of indication that the phone

was used in the commission of the crime or around the commission of the

crime.” Id. Allen argued that nothing in the affidavit “sa[id] that he was

using it in the moments leading up to the robbery” or that “he is using it after.”

Id.

Butler then argued his motion to suppress and joined Allen’s argument.

Id. at 61 (“And I join [the] argument about the general statement that a

phone is in the vicinity of a crime is not probable cause, in and of itself, that

there was a crime committed.”). Separately, Butler argued that “the sole

information that purports to implicate Mr. Butler in this crime in this warrant

is information that was provided to the Commonwealth purportedly by a

confidential source.” Id. He asserted that the information provided by the

source was not sufficiently corroborated. Id. at 62 (“[T]his affidavit contains

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no information from which a reviewing court could assess the reliability of this

confidential source.”) Additionally, Butler stated that the source was “relaying

information that someone else gave to her.” Id.

Butler acknowledged that the authorities thereafter searched Johnson-

Butler’s phone based on this information but argued that the results of the

search demonstrated that the source was unreliable. Specifically, the source

had relayed that the phone contained an inculpatory admission by Butler, but

“the detective did not recover that recording” as the affidavit makes no

mention of it. Id. at 63. Moreover, he asserted that the remaining

information obtained from the search of Johnson-Butler’s phone was

insufficient, as none of the text messages directly mentioned Butler’s name.

Id. Butler argued:

And then there’s a message from Johnson-Butler, I feel so

bad for him, bro; this is not his life; I don’t like him around my

brother. It’s not saying that the brother’s involved. It appears to

be saying that the person involved has somehow associated in the

past with ... Butler or whoever Gieara Johnson-Butler’s brother is.

This does not indicate when this other person was supposedly

around Gieara Johnson-Butler’s brother. It doesn’t even indicate

that Jerry Butler’s the brother that’s being referred to.

So, Your Honor, the probable cause as it relates to Jerry

Butler in this affidavit is completely lacking. And for those

reasons, I’d submit that the historical cell site records for his

alleged cell phone should be suppressed.

Id. at 64.

The trial court addressed the search warrant claim in its written opinion

as follows:

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In this case, the argument was that probable cause was lacking

because the warrant relied only on information provided by the

[confidential informant (“CI”)], and the reliability of that

information was not substantiated. However, a reading of the

affidavit of probable cause supports the Commonwealth’s

characterization. The affidavit does not rely on information

provided by the CI as the basis for probable cause. Rather, the

[information] given by the CI provided law enforcement avenues

for investigation, and from that investigation law enforcement

gathered information that supported a probable cause

determination. Specifically, the affidavit of probable cause[] set

out on page 15[] the meeting that Lieutenant Richard had with

the CI, and the information that the CI provided. In part, the CI

provided information based upon conversations the CI had with

Gieara Johnson-Butler, the sister of Butler, and specifically a

conversation the CI had with her regarding her ability to identify

Butler in surveillance video, screen shots of a text message

conversation the CI had with her, and that she told the CI she had

a recording on her cell phone that implicated Butler. The affidavit,

next details what action law enforcement took after this

conversation with the Cl. They located Johnson-Butler, and []

they seized her cell phone until a search warrant could be

obtained. The affidavit of probable cause then set forth what the

search warrant for the download of Johnson-Butler’s cell phone

uncovered. Therefore, this [c]ourt agreed that even if you take

out all the references to the confidential informant, there was

sufficient evidence to support a finding of probable cause.

Trial Court Opinion, 1/21/2025, at 17-18.

The Commonwealth maintains Butler has waived his claims because his

concise statement is vague as to this issue. The Commonwealth observes

that Butler raised two distinct arguments at the suppression hearing. First,

that “the affidavit failed to connect his phone to the murder, which he now

raises on appeal.” Commonwealth’s Brief at 16. Second, that “the affidavit

relied on an uncorroborated confidential informant, which he has abandoned

on appeal.” Id. at 16-17. The Commonwealth points out that the trial court

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opinion addressed only the abandoned claim and submits that the fault lies

with Butler. See id. at 16 (“[Butler]’s concise statement broadly alleged that

the search warrant for historical cell data for the phone ending in 5767 lacked

probable cause.”). In its view, the failure to clearly state in the concise

statement that the warrant failed to adequately link the phone to the murder

has waived his claim.

We decline to find waiver on this basis, as the concise statement alleged

that “law enforcement’s acquisition of said historical CSLI constituted a search

... not supported by probable cause[.]” Concise Statement, 11/27/2024, ¶ 2.

As the Commonwealth recognizes, Butler raised both an argument as to the

CI and also joined Allen’s argument before the trial court as to the absence of

probable cause, the latter of which is the claim presented on appeal. This

argument is clearly subsumed by the claim he raised in his concise statement

and therefore is not waived. See Commonwealth v. McKown, 2013 PA

Super 282, 79 A.3d 678, 685 n.5 (Pa. Super. 2013) (declining to find waiver

because the “issue is fairly subsumed within” an issue raised in the concise

statement).

On appeal from a denial of a motion to suppress, our review

is limited to determining whether the factual findings are

supported by the record and whether the legal conclusions drawn

from those facts are correct. We are bound by the suppression

court’s factual findings so long as they are supported by the

record; our standard of review on questions of law is de novo.

Where, as here, the defendant is appealing the ruling of the

suppression court, we may consider only the evidence of the

Commonwealth and so much of the evidence for the defense as

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remains uncontradicted. Our scope of review of suppression

rulings includes only the suppression hearing record and excludes

evidence elicited at trial.

Commonwealth v. McMahon, 280 A.3d 1069, 1071 (Pa. Super. 2022)

(citation omitted).

The Fourth Amendment to the United States Constitution protects

privacy interests by requiring search warrants to be based on probable cause.

Search warrants protect privacy in two main ways. First, they

ensure that a search is not carried out unless a neutral magistrate

makes an independent determination that there is probable cause

to believe that evidence will be found. Second, if the magistrate

finds probable cause, the warrant limits the intrusion on privacy

by specifying the scope of the search—that is, the area that can

be searched and the items that can be sought.

Birchfield v. North Dakota, 579 U.S. 438, 469 (2016) (citation omitted).

“[P]robable cause is a fluid concept—turning on the assessment of

probabilities in particular factual contexts—not readily, or even usefully,

reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232,

(1983). We apply the “totality of the circumstances” test set forth in Gates

under our constitution. See Commonwealth v. Gray, 503 A.2d 921, 922

(Pa. 1985). Probable cause “must be based on common sense non-technical

analysis.” Id. at 925.

Additionally, there must be a nexus between the criminal activity and

the proposed search. See Commonwealth v. Torres, 177 A.3d 263, 273

(Pa. Super. 2017). Butler’s probable cause argument largely focuses on an

asserted failure to establish a nexus. He maintains that the Commonwealth

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failed to show any link between Butler’s cell phone and the crime. He argues

that “a valid warrant for … CSLI requires specific facts establishing a fair

probability that the sought-after records will yield evidence of a crime, and

that the phone number at issue is sufficiently connected to the criminal

conduct under investigation.” Butler’s Brief at 35. He discounts Detective

Minzola’s recitation of his history and experience with criminals using cell

phones on the grounds that probable cause “must be individualized to the

suspect and the circumstances of the case; it requires more than generalized

statements about human behavior that are unsupported by the specific facts.”

Id. at 36 (quoting Jacoby, 170 A.3d at 1084). Hence, Butler maintains that

the affidavit “failed to establish any particularized facts tying Butler’s phone,

or its historical location data, to the alleged offenses.” Id.

In his view, the affidavit relied entirely on generic assumptions, as it

“merely recited the existence of the crime and asserted, in general terms, that

cell phone records may assist in the investigation,” and failed to show any

basis to conclude that Butler himself “was in possession of the phone at

relevant times, that his phone was used in connection with the crime, or that

the CSLI sought would likely place him at or near the scene during the

commission of the offense.” Id. “Further, there was no showing that law

enforcement had independently identified Butler’s phone as being in use

during or after the alleged incident.” Id.

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We reject Butler’s argument that the Commonwealth needed to directly

tie the phone itself to the crime. A search warrant may be authorized for

“mere evidence” when the affidavit establishes a “nexus between the items to

be seized and the suspected crime committed which is necessary for the

search and seizure of purely evidentiary items.” Commonwealth v. Butler,

291 A.2d 89, 90 (Pa. 1972) (citing Warden, Md. Penitentiary v. Hayden,

387 U.S. 294 (1967)). For nexus purposes, the items to be seized were the

records held by Butler’s cell phone provider. Thus, the Commonwealth had to

establish probable cause to believe that the CSLI records would have

evidentiary value.

In Commonwealth v. Pacheco, investigators learned a large drug-

trafficking organization was smuggling heroin into the United States and that

Pacheco “played a significant role in the operation by retrieving the heroin in

Atlanta, Georgia, and transporting it to wholesale buyers in New York City.”

Commonwealth v. Pacheco, 263 A.3d 626, 629 (Pa. 2021). Investigators

obtained judicial approval to capture real-time CSLI disclosing Pacheco’s

whereabouts.5 Id. at 632. Pacheco argued, with respect to nexus, that an

order obtained under the Wiretap Act was insufficient because the statute

“permit[s] a search predicated on a judicial determination regarding the

____________________________________________

5 Although Pacheco involved an application under the Wiretap Act granted

by a court of common pleas, our Supreme Court held that this was the

functional equivalent of a warrant and thus satisfied Fourth Amendment

protections. Pacheco, 263 A.3d at 652.

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likelihood that the surveillance will shed light on a criminal investigation, and

not a nexus between the proposed search and particularized criminal activity

required to demonstrate probable cause.” Id. at 642. The Court disagreed:

[T]he district attorney demonstrated in its application and affidavit

the requisite probable cause to believe that the evidence sought

would aid in a particular apprehension or conviction for a particular

offense. To be precise, the application and affidavit demonstrated

probable cause to believe that the CSLI evidence sought from the

targeted cell phones, identified by the phone number attached to

them, would aid in the apprehension of [Pacheco] for the specific

offenses of manufacture, delivery, and/or possession with the

intent to deliver a controlled substance, criminal conspiracy, and

criminal use of a communication facility. Thus, the

Commonwealth established individualized suspicion and a nexus

between the real-time CSLI evidence sought and the identified

crimes alleged to have been committed by [Pacheco]. The

Commonwealth additionally demonstrated in the affidavit that

[Pacheco] utilized his cell phone in conducting the drug-trafficking

activities.

Id. at 648.

Thus, to the extent Butler claims that the Commonwealth was required

to establish that the “sought-after records will yield evidence of a crime,” i.e,

that the phone itself was used to facilitate the crime, he is incorrect. See

Butler’s Brief at 35. As Pacheco makes clear, the Commonwealth established

a nexus where the CSLI records will “aid in the apprehension” of the defendant

if the affidavit establishes probable cause that the defendant committed the

offenses alleged.

Evidence that the defendant actually used the phone to further criminal

activity, as in Pacheco, is certainly a relevant factor. But it is not the sine

qua non. In this respect, we are persuaded by the discussion of the

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Massachusetts Supreme Court in Commonwealth v. Hobbs—a case also

cited by the Pacheco Court on a separate question6—regarding the required

relationship between the criminal activity and CSLI records:

[I]n light of the inseparability of person from cell phone, an

affidavit establishing that a suspect committed a crime and that

the suspect was known to own or use a particular cell phone, along

with the reasonable inferences drawn therefrom, demonstrates a

substantial basis to believe that the CSLI from that cell phone was

“related to the criminal activity under investigation, and that [the

CSLI] reasonably may be expected to be located in the place to

be searched at the time the search warrant issues.” More

precisely, the location of a suspect’s cell phone at the time

of the criminal activity provides evidence directly related

to his or her participation, or lack thereof, in the criminal

activity, and the location of the cell phone at that time can

reasonably be expected to be found in the CSLI records requested.

Consequently, there is a sufficient nexus between the

criminal activity for which probable cause has been established

and the physical location of the cell phone recorded by the CSLI

of the person the applicant has probable cause to believe has

committed the offense, at least for the time and place of the

criminal activity. A direct observation of a suspect’s actual use of

the cell phone during the commission of the crime is thus not

required to establish the requisite nexus between the crime and

CSLI.

Commonwealth v. Hobbs, 125 N.E.3d 59, 69-70 (Mass. 2019) (emphasis

added; citations omitted).

Here, the affidavit set forth sufficient facts for a Magisterial District

Judge to conclude there was probable to believe that Butler’s cell phone

provider would have historical CSLI records relevant to establishing Butler’s

____________________________________________

6 The Pacheco Court cited Hobbs in its discussion of the difficulty in defining

the permissible timespan for CSLI searches. See Pacheco, 263 A.3d at 650.

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participation in the conspiracy to rob and murder Carter. 7 The affidavit linked

Butler’s codefendants to the murder, and the affidavit established probable

cause to believe that Butler was with those codefendants and involved in their

scheme. Therefore, the affidavit set forth the required nexus between Butler’s

cell phone number, the crime, and the CSLI records.

Finally, we do not agree that the Commonwealth was required to

establish more direct evidence of Butler’s possession of a cell phone. The

magistrate could credit the commonsense determination that Butler, who was

known to have a cell phone, was likely to be carrying his cell phone on his

person over the requested time period. In Commonwealth v. Choice, we

addressed a geofencing warrant, a process by which law enforcement obtains

“location history … data from cellular devices present at the time and place of

the crime[.]” Commonwealth v. Choice, 345 A.3d 719, 722 (Pa. Super.

2025). These “warrants effectively work in reverse from traditional search

warrants,” as law enforcement supply a specific location and period of time,

and the phone companies provide a list of cell phones and users matching the

parameters. Id. at 722 n.2 (citation omitted).

Choice argued, among other points, that the Commonwealth failed to

sufficiently establish probable cause to believe that the perpetrator of a

____________________________________________

7 In reaching this conclusion, we do not address whether the Commonwealth’s

probable cause for the CSLI records was limited to the day of the murder itself.

That concept is raised in Butler’s overbreadth argument, which we discuss

infra.

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shooting possessed a cell phone. We disagreed, concluding that “the

Commonwealth was not required to set forth ‘concrete evidence’ that [Choice]

was using a cell phone with Android-based location services.” Id. at 739.

Instead, the Commonwealth appropriately relied on the “fair

probability” standard, borne out by the ubiquity of cell phone

usage, that a majority of cell phone users utilize Android-based

services, and that [Choice] likely possessed such a device.

Because pervasive cell phone possession and cell phone service

usage is a matter of common knowledge, and because law

enforcement combined this common knowledge with specific

factual circumstances regarding the time and place of the crime,

we reject [Choice]’s argument that the December 2020 search

warrant relied upon “categorical assumptions.”

Id. at 739–40 (footnote omitted).

This analysis readily extends to the present scenario. Indeed, the

reason that cell phone users have a reasonable expectation of privacy in

historical CSLI records held by a third-party service provider is because users

“compulsively carry cell phones with them all the time.” Carpenter v. United

States, 585 U.S. 296, 311 (2018). Thus, “when the [g]overnment tracks the

location of a cell phone it achieves near perfect surveillance, as if it had

attached an ankle monitor to the phone’s user.” Id. at 311-12. That analysis

relies on the notion that a cell phone user is exceedingly likely to be carrying

his or her phone. Thus, as in Choice, the combination of this commonsense

notion, when paired with evidence that Butler had and used a cell phone, was

associated with his codefendants, and tied him to the robbery/murder,

supplied probable cause.

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Butler’s second argument is that the search warrant was overbroad

because the Commonwealth requested and received historical CSLI dating

from January 8, 2024 through January 26, 2024. We conclude that Butler

waived this claim by failing to seek suppression on that basis.

“If there is probable cause to search, the warrant must be properly

limited in scope.” Commonwealth v. Ani, 293 A.3d 704, 716 (Pa. Super.

2023). This concept addresses the particularity requirement of the United

States Constitution and the Pennsylvania Constitution. “Although some courts

have treated overbreadth and ambiguity as distinct defects in warrants, both

doctrines diagnose symptoms of the same disease: a warrant whose

description does not describe as nearly as may be those items for which there

is probable cause.” Commonwealth v. Grossman, 555 A.2d 896, 899-900

(Pa. 1989) (citation omitted).

Butler complains that the warrant was overbroad because it “describes

criminal activity that occurred between January 20, 2024, and nothing before.

Nevertheless, the warrant sought, and law enforcement obtained, historical

CSLI for Butler’s phone dating back to January 08, 2024.” Butler’s Brief at

42.

“[I]n any assessment of the validity of the description contained in a

warrant, a court must initially determine for what items probable cause

existed. The sufficiency of the description must then be measured against

those items for which there was probable cause.” Grossman, 555 A.2d at

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900. Butler’s overbreadth argument appears to be that, at most, the

Commonwealth would be entitled to CSLI for January 20, 2024, and only that

date. Butler’s Brief at 43 (“There is simply nothing in the warrant even

resembling probable [cause] to justify law enforcement’s request to review a

record of ... Butler’s every movement for the nearly two-week period

preceding the criminal activity of January 20, 2024[.]”). 8

Our review of the record reveals that Butler failed to argue this point to

the trial court. His motion to suppress merely alleged that “said invalid

warrant was overbroad and further failed to identify with particularity the

information sought to be search[ed] for and seized[.]” Motion to Suppress,

5/23/2024, ¶ 18(b). Nowhere did he argue that the timeframe for which the

CSLI was sought was unsupported by probable cause, and his generic

argument failed to alert the court to the nuanced overbreadth issue 9 he now

____________________________________________

8Butler’s brief does not discuss the Commonwealth’s request for historical

CSLI records from January 21 through January 26.

9 As noted, the overbreadth argument presented on appeal seemingly

concedes, at least for purposes of the overbreadth claim, that the affidavit

presented sufficient probable cause with respect to the day of the murder

itself. In Ani we held that the affidavit to search a cell phone established

probable cause as to some items but not others. Applying the severability

doctrine, we suppressed only those items for which there was not probable

cause.

Butler maintains that “all evidence derived from the defective warrant

should have been suppressed[.]” Butler’s Brief at 44. In support, he cites

Grossman, in which an overbroad warrant resulted in suppression of all

evidence. The Grossman Court did not address severability; furthermore,

(Footnote Continued Next Page)

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presents on appeal. See Pa.R.Crim.P. 581(D) (“The motion shall state

specifically and with particularity the evidence sought to be suppressed, the

grounds for suppression, and the facts and events in support thereof.”). We

thus conclude that Butler has waived his claim.

Unconstitutionality of LWOP

Butler’s final issue presents an argument that the sentence of

mandatory LWOP is unconstitutional. In Commonwealth v. Rivera, 238

A.3d 482 (Pa. Super. 2020), we rejected the claim that the Eighth Amendment

to the United States Constitution forbids a sentence of LWOP for second-

degree murder. In Commonwealth v. Zettlemoyer, 454 A.2d 937, 967 (Pa.

1982), our Supreme Court held that our charter’s provision against cruel

____________________________________________

the warrant at issue there sought to seize “all files.” Grossman, 555 A.2d at

900. In Ani, we noted that the warrant there “did not authorize a search of

‘any and all data’ on the phone.” Ani, 293 A.3d at 730. The warrant here did

not seek all CSLI for every day of Butler’s life, and, as noted, Butler seemingly

concedes that probable cause existed with respect to the requested items as

to the date of Carter’s murder.

Finally, as previously noted, in Pacheco, our Supreme Court stated: “As

other courts have recently observed, ‘defining the permissible parameters of

time for CSLI searches that are justified by probable cause is difficult,’ and

each case involves a fact-intensive inquiry that must be resolved based on the

particular facts presented.” Pacheco, 263 A.3d at 650 (quoting Hobbs, 125

N.E.3d at 71).

Thus, the question of overbreadth could be multifaceted. By failing to

specifically define the basis of his argument that the warrant was overbroad,

Butler deprived the trial court of its opportunity to consider and decide

whether the timeframe for CSLI requested by the Commonwealth was

supported by probable cause. It also denied the trial court the first

opportunity to answer the question of severability.

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punishment is coextensive with the Eighth Amendment to the United States

Constitution.

In Commonwealth v. Lee, 301 A.3d 899 (Pa. Super. filed June 13,

2023) (non-precedential decision),10 this Court concluded that Rivera

remained good law and had not been undermined by subsequent United

States Supreme Court caselaw. We also concluded that Zettlemoyer

remained good law, and thus Lee’s claim under our Constitution likewise

failed.

Our Supreme Court granted Lee’s petition for allowance of appeal on

both questions. See Commonwealth v. Lee, 313 A.3d 452 (Pa. 2024).

Butler states that “the Supreme Court’s resolution of [Lee] will likely be

dispositive of [Butler]’s constitutional challenges to the sentence imposed.”

Butler’s Brief at 46.

We are persuaded by the Lee Court’s conclusions that the Rivera and

Zettlemoyer cases remain binding on this Court. Therefore, unless and until

our Supreme Court overrules those precedents in Lee, Butler’s claims on this

issue fail.

Judgment of sentence affirmed.

____________________________________________

10 We may cite non-precedential decisions of this Court filed after May 1, 2019,

for persuasive value. See Pa.R.A.P. 126(a).

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Date: 2/3/2026

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